Requiring school districts to certify they are not engaging in any diversity, equity and inclusion initiatives doesn’t necessarily mean they’ll lose state funding, an attorney for the state told a judge.
Assistant attorney general Brandon Chase argued that by setting a deadline for those letters to be sent to the Department of Education, the state was merely collecting information.
“We’re not presuming that people are actually teaching these things,” he said. If they were, “there is a funding component to remove the funding, but it’s not as if we’re going into it with that purpose in mind.”
Four school districts sued the state in federal court in an attempt to block a new law that bans schools from using any state funds for DEI efforts. They asked Judge Landya McCafferty to shield them from submitting those certifications.
McCafferty said the law seemed to allow the state to strip funding and jobs from schools without giving them due process.
“All funding to the school is taken away by the state of New Hampshire if the state of New Hampshire determines that something qualifies as DEI — all funding — and there’s no procedure or way in which to challenge that,” McCafferty said. “Where is the appeal process? Where does a teacher, a school district, where do they go to appeal that?”
Chase responded that funding is not removed forever, and schools can get their funding back by coming into compliance with the law — a statement that elicited scoffs and laughter from those sitting behind the plaintiff’s bench.
“There is recourse for potential violation of the statute,” Chase said. “Sure, it is not built into the statute, I agree,” but school districts would retain their legal options.
McCafferty noted, however, that the state wouldn’t necessarily have to pay school districts the money it withheld — just to resume funding in general.
The New Hampshire chapter of the National Education Association, LGBTQ+ advocacy group New Hampshire Outright and other individuals joined the lawsuit with the four school districts, Oyster River Cooperative, Dover, Somersworth and Grantham.
Their attorney, Gilles Bissonnette, the legal director for New Hampshire’s chapter of the American Civil Liberties Union, argued Wednesday that the law is sweeping and vague, leaving school administrators and educators in limbo on how to follow it.
“They do not know how to comply,” he said, “and if they guess wrong, funding is on the line.”
The state’s attorneys sought to downplay the law’s reach as McCafferty peppered them with questions over due process for school districts, how the law would be applied in different situations and what constitutes as “DEI-related activities.”
Examples in the law include implicit bias training, DEI assessments, critical race theory, race-based hiring and any initiative that classifies people by protected characteristics outlined in state human rights law — like race, sex and gender identity — “for the purpose of achieving demographic outcomes, rather than treating individuals equally under the law.”
Assistant attorney general Sam Gonyea, however, told McCafferty that programs including critical race theory could fly in some cases, like if the school does it because it thinks everybody should learn about critical race theory instead of pursuing a demographic outcome.
McCafferty pressed him on that claim, questioning how critical race theory would be allowed since it’s explicitly listed in the law as an example of a DEI-related activity.
“To teach critical race theory, they would have to raise funds,” Gonyea explained, because state funding could not be used for it. “But they would not lose all of their state funding if they taught that in the school through their own raised funds.”
Gonyea also said that the law would allow and exempt certain DEI efforts if they are “meant to treat people equally.”
McCafferty sought to flesh out that claim: Wouldn’t school districts need to classify people by sex to create a girls’ sports team?
Gonyea said that would be allowed or exempt because the classifications are meant to raise a group to the level of equal treatment. Other efforts, like those that pursue quotas of a certain number of people from certain groups, would be disallowed, Gonyea said.
Discussion also harkened back to similar cases, including McCafferty’s decision this spring to partially block a directive from the Trump administration that sought to forbid DEI initiatives in schools that receive federal funding.
As for the state law, McCafferty is set to issue her ruling on its constitutionality and whether school districts must submit documentation certifying their compliance with the law by the Department of Education’s deadline of Sept. 5.
As of Wednesday, 27 of the state’s 180 public school districts had submitted their certifications, including Bow, Dunbarton, Merrimack Valley and Pittsfield, according to the department’s public tracker.